2016 QCCQ 2697, 2016 QCCQ 2697

R. c. Irving 2016 QCCQ 2697 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE Criminal and Penal Division No. 455-01-011243-114 DATE: April 20, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

LEE IRVING Accused ______________________________________________________________________ JUDGMENT ON THE APPLICATION TO EXCLUDE EVIDENCE FROM THE ACCUSED ______________________________________________________________________ BACKGROUND [ 1 ] JC00K1 Lee Irving faces two charges: first, for having operated a vehicle in Bromont on April 3, 2011, while impaired by alcohol or a drug; and second, for having operated that same vehicle on that same date and at the same location, while having had consumed a quantity of alcohol that was over the legal limit. [ 2 ] During his trial, he presented an application alleging that his constitutional rights guaranteed by

section 10 (

b) of the Canadian Charter of Rights and Freedoms (hereinafter “the Charter”) had been violated. Given this violation, he is calling for evidence to be excluded. [ 3 ] He recognizes that if his application is refused, he will have no other grounds for defence and will enter a guilty plea for the second charge. As for the Crown, it recognizes that it is unable to satisfy its burden of proof for the impaired driving charge and that it will be appropriate to enter an acquittal on that charge. [ 4 ] The trial opened with the holding of a constitutional voir dire to decide on the application.

The evidence presented at that time would be filed, if needed, at the trial, with the consent of the parties. THE FACTS [ 5 ] The facts date back more than five years, which appears to explain the weakness of certain pieces of evidence. [ 6 ] Briefly stated, the facts are these: During the night of April 3 to 4, 2011, two police officers from the Bromont police department were performing a speed limit enforcement operation on Boulevard Pierre-Laporte. They were accompanied by a police technology student who was described before the Court as a “stagiaire” (intern).

The two police officers, officers Messier and Healy, were in the same vehicle, and had been busy with that operation for several minutes. At approximately 10:50 p.m., they intercepted a vehicle driving at 120 km/h in that zone, where the legal speed limit was 90 km/h. [ 7 ] The vehicle was intercepted from a short distance, and the police officers quickly determined that there was reason to order the driver, the accused, to give breath samples in an approved screening device (ASD).

They detected the scent of alcohol, and the accused admitted to having consumed some. [ 8 ] Since the accused said that he had consumed alcohol very shortly before leaving a licensed establishment in Bromont known

to the police officers, and they believed (seemingly rightly) that the result given by the device could be incorrect if the breath sample was taken within 15 minutes of consumption, they waited a few minutes to obtain the breath sample. [ 9 ] To be more specific, Officer Messier ordered the accused to undergo the test by giving the order set out in section 254(2) of the Criminal Code , but, instead of immediately bringing the ASD to the accused’s mouth, waited 6 or 7 minutes until a likely time period of 15 minutes had passed since what could have been Lee Irving’s last consumption of alcohol. [ 10 ] When the accused gave a breath sample in that device, he received a “fail” result. [ 11 ] Given this failure, Officer Messier proceeded to arrest the accused and read him his rights, then drove him to the police station.

When they arrived at this location, the accused was placed in a small area designated as being the “salle d’avocats” (lawyer room). According to Officer Messier, the accused then, contrary to what occurred when the rights were first read, asked to speak to a lawyer, but stated that he did not know any. [ 12 ] Officer Messier testified that he then picked up the telephone and called Legal Aid. Next, he passed the handset to the accused, who he said spoke for three minutes with a lawyer, Mtre.

Marceau. [ 13 ] At the end of the conversation with the lawyer, the accused is said to have completed a document described as the “scénario de consommation” (consumption scenario), then gave breath samples. [ 14 ] As for the accused, he indicated that he is Anglophone and was, at least in 2011, very uncomfortable with the French language. He could get by in French, but was not at all familiar with legal terms. He was aware that one of the police officers had read him a “carte” (card) or a document, but this reading had been quick, and he had not at all understood the meaning of what was read to him.

He did not know that he had the right to consult a lawyer. [ 15 ] He denies having said that he did not know any since, to the contrary, he had a lawyer, whose services he had retained for at least three years at that time. That lawyer, in whom he had complete trust, was representing him at that time in a dispute concerning custody of his daughter, then age 5. [ 16 ] That dispute concerning custody, access or support payable by him had lasted several years and, in fact, had apparently only ended in recent months.

Given the active nature of that case, he stated that he had that lawyer’s number stored on the cell phone that he had on him. If he had understood that he was given the opportunity to contact a lawyer, he would have done so without hesitation. [ 17 ] He added that he had never been arrested before by police officers or even taken to a police station. He knew nothing of criminal proceedings. Shortly after his arrival, he was placed in the room of the police station where a telephone was located.

He indicated that one of the police officers passed him the telephone while indicating that a lawyer was on the line. [ 18 ] He testified that he was at that time greatly concerned and shaken. He did not even know whether the person on the other end of the line was really a lawyer or whether he or she was a police officer. He did not know who this person was. [ 19 ] As for the matter of the language, the police officers acknowledged that they quickly understood that Lee Irving was Anglophone.

According to them, from the start of their interaction with him, he apparently demonstrated that he was as comfortable in French as in English. [ 20 ] The police officers stated that the accused reacted well to their commands, to follow them or breathe into the ASD for example.

It seemed that they were convinced that he had a very good understanding of French, the language in which they spoke until the consumption scenario was made. [ 21 ] I understand, specifically about this last matter, that the evidence is clear and uncontradicted that starting from the end of the conversation with the lawyer, the police officers conversed only in English with the accused.

The order to breathe into the breath analyzer was therefore given to him in that language, and the consumption scenario, for example, was completed entirely in English. [ 22 ] Furthermore, the police officers acknowledged that other than “oui” (yes) and “non” (no), all the other words spoken by the accused were in English, even when they addressed him in French. [ 23 ] The cross-examination of the police officers also brought to light that, as is quite understandable, their memory of the events was limited and depended largely on their report.

Moreover, it was also established that this report as well as the notes accompanying it included certain quotes that they themselves admitted were erroneous. [ 24 ] That cross-examination also showed that despite the fact that there are certain quotes in the report that are in quotation marks, presenting them as textual statements by the accused in French in the report, the words were in fact spoken in English. ANALYSIS AND DECISION [ 25 ]

Section 10 (

b) of the Charter reads as follows: 10. Everyone has the right on arrest or detention . . . (

b) to retain and instruct counsel without delay and to be informed of that right; . . . [ 26 ] The accused invoked more than one ground to support his challenge. He stated first that he had never truly been informed of

his right to retain counsel, at the very least, not in his language and not in an understandable manner. Alternatively, he stated that he had the right to consult the lawyer of his choice, that he had and knew a lawyer and that he would have had time to consult him while he was forced to wait on the side of the road. [ 27 ] As he had a cell phone on him, it would have been possible to let him contact a lawyer during that time, if he had known that he had the right to do so.

Finally, at the police station, he had been deprived of his right to speak to the lawyer of his choice. [ 28 ] I consider that just one of these issues is decisive and sufficient, and for this reason, I will avoid addressing the others. [ 29 ]

Section 10 (

b) of the Charter provides that a person who has been detained or arrested has the right to be informed of his or her right to consult a lawyer. This right has been raised, in this section, to a constitutional obligation of law enforcement officers who interact with people who are arrested or detained. [ 30 ] The obligation to inform cannot be so intense that it is necessary to prove that the person to whom the information was addressed has understood it well. It is impossible to know with certainty what another person understands despite the clearest explanations.

It is also conceivable that the person concerned may obstruct the receipt of the information, by shouting or plugging his or her ears for example, or by experiencing psychosis, making him or her lose contact with reality. [ 31 ] However, it is just as unacceptable to claim that the constitutional obligations can be met simply by mechanically reading out a formula, with no attention paid to the person to whom it is addressed.

In my view, it is essential that the right, for it to be meaningful, be conveyed in such a way that the person who does so has reasonable assurance that the message was received. [ 32 ] It appears to me that one practice, which is not essential but very useful, consists in asking the person concerned to repeat what was said in his or her own words. [ 33 ] It is essentially the matter of language that is in question here.

On this topic, it seems to me to be minimally reasonable to read an accused’s rights in his or her language, especially if the language is one of the country’s two official languages and the police officers can easily express themselves in the language of the person under arrest. [ 34 ] The evidence is very convincing that the accused was not at all agitated, incoherent, impolite or disagreeable with the police officers.

No one claims that he could have acted with the aim of preventing the police officers from doing their work. [ 35 ] His lack of understanding of the situation in which he found himself seems sincere to me, if I accept his testimony. [ 36 ] Conversely, the testimony of the police officers is far from being as convincing.

The erroneous details raised on the written report, including the “citations” (quotations) attributed to the accused, but in another language, and the admission that the language used with the accused changed starting with the call to the lawyer, give credence to Lee Irving’s account. [ 37 ] Furthermore, the fact that the accused followed the police officers’ instructions is not particularly surprising. In practice, he does not claim to understand nothing.

Moreover, what is more important is that, all in all, the police officers’ instructions were not complex: give his papers, get out of his vehicle, breathe into the ASD, sit in the patrol car, etc. [ 38 ] Accepting the accused’s account does not require perilous reasoning exercises. If I accept his version, as I do, it is clear that the accused’s right to be informed of the opportunity to retain the services of a lawyer was violated, since this right had been conveyed to him in a way that was not understandable for him in practice. [ 39 ] This determination does not settle everything.

When a court considers that the rights of a person have been violated, it must then decide the penalty to impose. Section 24(2) of the Charter outlines the criteria to be applied: 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [1] [ 40 ] The Supreme Court of Canada’s decision in Grant [2] is now the most frequently referenced to provide the test that is appropriate to this provision. [ 41 ] In that decision, the Supreme Court suggested separating the test into three branches as follows.

What must first be examined is the seriousness of the state conduct. Next, the impact of the infringement of Charter-protected rights must be assessed, and finally, society’s interest in the adjudication of the case on its merits must be seen to. [ 42 ] There is a final exercise through which the Court must balance these three branches in order to come to an adequate conclusion. 1.

The seriousness of the Charter-infringing state conduct [ 43 ] Having mechanically read the accused’s rights without a true regard for whether they are understood seems to me to constitute conduct of sufficient seriousness to impose the consequences provided for in the Charter . 2. The impact of the infringement of Charter-protected rights [ 44 ] French and English are the two official languages of Canada. This status is constitutional (

section 16 of the Charter ) and is rightly reflected throughout the criminal proceeding. We need only consider

section 530.1 of the Criminal Code . The Court of Appeal of Québec’s well-known decision in Dow [3] is a reminder of it as well. [ 45 ] The right of an accused to interact with police officers in his or her language does not have the same status; that is obvious.

However, it is useful to recall how the Supreme Court of Canada spoke on the matter of the impact of the rights infringement in the Grant decision: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [4] [ 46 ] My previous determination is not, of course, that the infringement is of the purely linguistic right of the accused to use either official language.

Rather, it is an observation that the right to be truly informed of the right to consult a lawyer was violated in the circumstances by the failure to use the accused’s official language on the part of the police officers, who clearly could have made use of it. [ 47 ] This failure caused, in practice, the inaccessibility of a lawyer to the accused, which appears to me to be a major consequence. [ 48 ] In fact, applying the facts of the case to the principles set out in the above-quoted paragraph leads me to believe, in particular, that the admission of the evidence risks signaling to the public that Charter rights, however high sounding, are of little actual avail to the citizen. [ 49 ] This factor contributes to the subsequent rejection of the evidence. 3.

Society’s interest in an adjudication of the case on its merits [ 50 ] It is conceivable that, in general, society has an interest in the adjudication of all cases alleging criminal misconduct by a member of said society on their merits.

It is also conceivable that this interest could nevertheless be variable according to the seriousness of the conduct. [ 51 ] Here, I would like to give a reminder that the offence, in the circumstances , is more technical, since the Crown recognizes that it is unable to prove beyond a reasonable doubt that the accused was driving while impaired by alcohol or a drug. [ 52 ] His crime is solely driving with an alcohol level that was over the legal limit. [ 53 ] I am not saying that one of these crimes is less serious than the other, but if, as in the present circumstances, the Crown recognizes its inability to demonstrate that the accused’s ability to control a vehicle was affected by alcohol or a drug, the level of risk to society is certainly lower. [ 54 ] In weighing all of these factors, it seems to me that the evidence should therefore be excluded. [ 55 ] For these reasons, the accused’s application is ALLOWED, and the evidence gathered after the violation of his rights is EXCLUDED. __________________________________ Serge Champoux J.C.Q.

Mtre. David St-Georges Counsel for the plaintiff Mtre. Alexandre Caissie Counsel for the accused Date of hearing: February 5, 2016